Recently, the National Labor Relations Board (“NLRB”) invited the public to file amicus briefs regarding the treatment of “profane outbursts and offensive statements of a racial or sexual nature.” Gen. Motors LLC & Charles Robinson, 368 NLRB No. 68 (Sept. 5, 2019). The Equal Employment Opportunity Commission (“EEOC”) accepted the invitation.
The EEOC and NLRB have similar duties to protect employees’ rights, but the two government agencies treat employees’ use of hostile or offensive language differently. See John Alan Doran, NLRB Benchslap: Enabling Racism/Sexism (Sept. 20, 2016). Numerous NLRB decisions have held that a worker’s use of racial slurs may be protected concerted activity. See, e.g., Detroit Newspapers, 342 NLRB 223, 268-69 (2004). The EEOC says that the use of racial slurs, depending on the circumstances, may violate Title VII. In its Brief, the EEOC focused on the employer’s obligation to prevent and correct harassment in the workplace, which serves the primary objective of Title VII “to avoid harm.” See Faragher v. City of Boca Raton, 524 U.S. 775, 806 (1998). Ultimately, the EEOC urged that this objective is best served “by encouraging employees to complain of harassing conduct even before it become[s] actionable, so that employers can prevent an actionable hostile work environment.” While the EEOC did not take a definitive position on what standard the NLRB should adopt, it did advise the NLRB to consider a standard that allows employers to take action to correct forms of communication that violate Title VII or other antidiscrimination statutes, even though the communication might be protected concerted activity.
The EEOC does not always look at issues from the employer’s point of view, but its amicus brief shows that it understands the “catch-22” that employers face when attempting to protect an employee’s rights before the NLRB, while also keeping the workplace free of discrimination and harassment. It will be interesting to see how the NLRB addresses the EEOC’s concern, and whether it changes its standards.
